Public Bill Committee

[Mr. Edward O'Hara in the Chair]

Clause 57

General provisions about rules of court

Amendment proposed [this day]: No. 213, in clause 57, page 40, line 26, at end insert—
‘(c) the need to ensure that the manner in which the proceedings are conducted is fair to every party to the proceedings.’.—[Mr. Hogg.]

Question again proposed, That the amendment be made.

Edward O'Hara: I remind the Committee that with this we are discussing the following amendments:
No. 207, in clause 57, page 40, line 29, leave out paragraph (b).
No. 214, in clause 57, page 40, line 32, leave out subsection (4).
No. 208, in clause 57, page 40, line 33, leave out paragraph (a).
No. 216, in clause 58, page 41, line 23, after ‘interest’, insert
‘and that the withholding of the material would not cause injustice to a party to the proceeding,’.
No. 225, in clause 58, page 41, line 25, leave out ‘consider requiring’ and insert ‘require’.
No. 217, in clause 58, page 41, line 30, after ‘interest’, insert
‘and is sufficient to ensure that the conduct of the proceedings will be fair to all parties to those proceedings.’.
No. 226, in clause 58, page 41, line 30, at end insert—
‘(f) material which supports the case of a party to the proceedings may not be withheld from a party to the proceedings or from that party’s legal represenative and material which adversely affects the Treasury’s case may not be with held from any party to the proceedings or their legal representative.’.

Tony McNulty: I was going to say, but you spotted it, Mr. O’Hara, that I would seek to resist the amendment—and then sit down. I might have got away with that another time.

David Heath: Good afternoon.

Tony McNulty: Good afternoon, everybody. Good afternoon, Mr. O’Hara.
I rise to answer the debate on amendment No. 213. As I said earlier, special advocate procedures are available in other contexts, notably the Special Immigration Appeals Commission and the Proscribed Organisations Appeal Commission. The general objective is to keep the special advocate provisions in the Bill as close to those existing procedures as possible. The clause reflects corresponding powers in the SIAC and POAC provisions—for example, paragraph 5(c) to schedule 3 to the Terrorism Act 2000.
As I indicated, it might be useful if we spoke in more general terms about asset freezing as it is now. In that context, unless the Committee needs greater clarification, I am happy to forgo my contribution to a clause stand part debate.
The Committee will know that asset freezing aims to help prevent terrorist acts by preventing funds, economic resources or financial services from being used or diverted for terrorist purposes. The clause reflects the fact that the United Kingdom does that in accordance with United Nations obligations. The police and security services have noted the positive disruptive impact that asset freezing can have, and have made it clear that the regime is essential for counter-terrorism operations.
In a document published in February 2007 by the Home Office, the Treasury, the Serious Organised Crime Agency and the Foreign and Commonwealth Office, entitled “The financial challenge to crime and terrorism”, we noted that the Treasury had agreed on the advice of the law enforcement agencies to use closed-source evidence in asset freezing cases if there were strong operational reasons to impose a freeze but insufficient open-source evidence was available. The document stated:
“In order to ensure the fairness of any court challenge to the imposition of a freeze, the Government will introduce a procedure for the appointment of special advocates to represent the interests of the applicant in respect of the closed evidence”.
It should be noted that the Bill’s provisions are not about the Treasury’s decision to freeze a person’s assets; they deal with subsequent challenges by the designated person or another affected person to that decision or a related licensing decision.
With regard to some of the concerns expressed this morning, these are enabling powers. As such, they should be drafted broadly, with the rules of court giving the details. However, I assure the Committee that the provision has been drafted to ensure that all cases are dealt with in a consistent and fair manner, with regard for the rights of the appellant and the Government’s need to withhold material in the interests of national security.
The amendments seek to make provision for a level of detail that is not appropriate to be included in the Bill. Many of the concerns are about the detailed operation of the system. In general, I support the underlying concerns for protection and fairness for all parties. Those will be addressed in the rules of court, which will be put to Parliament for approval. I hope that the Committee understands that the vagaries of time do not allow me to say absolutely, but as I have said about assorted codes of practice and other secondary matters that follow on from the Bill, I hope to make the draft rules of court available before Report.
It may be stating the obvious, but I want to clarify the meaning of certain provisions. First, the words “in the absence of” a party or a legal representative of that party in clause 57(4)(b) exclude the designated person and his open advisers. However, they do not exclude the special advocate, who is appointed to represent the interests of an excluded party in exactly those circumstances. Earlier references to the designated person or his agent—in this case, the special advocate—not being able to be at the closed session are not accurate. They were not a part of the process as I understand it. The interests of the designated party were absolutely excluded from the proceedings.

Elfyn Llwyd: I am sure that I will be shot down in flames and corrected, but my reading of clause 57(4)(b) is thus:
“enabling the court to conduct proceedings in the absence of any person, including a party to the proceedings (or any legal representative of that party);”
Does that not mean that the lawyer for the party would be excluded from that hearing?

Tony McNulty: But not the special advocate—that is the whole point. The whole purpose of the special advocate provision is to have the advocate in the room during those nominally ex parte proceedings, given that the legal representative and the designated person are excluded. That is the whole purpose of the special advocate process.

Douglas Hogg: I do not like to disagree with the Minister but in
“enabling the court to conduct proceedings in the absence of any person,”
“any person” actually includes the special advocate, unless that phrase is so constructed that it does not include the special advocate. As drafted at the moment, the rules could exclude the presence of the special advocate.

Tony McNulty: No. Subsection (5)(b) clearly says:
“references to a party’s legal representative do not include a person appointed as a special advocate.”
With respect, in relation to the provision that the right hon. and learned Gentleman just read,
“enabling the court to conduct proceedings in the absence of any person, including a party to the proceedings (or any legal representative of that party)”,
subsection (5)(b) quite deliberately puts a special advocate outside the definition of the individual’s legal representative.

Dominic Grieve: I hope that I can help my right hon. and learned Friend the Member for Sleaford and North Hykeham. I disagree with the Minister: I appreciate his point that a special advocate is not the legal representative of a party, and that the advocate’s appointment is independent of the court. However, my reading of subsection (4)(b) is that it enables the court to conduct the proceedings in the absence of any person. That, on the face of it—although it might be a bit far-fetched—would appear to allow the court to conduct its proceedings with nobody present at all.

David Heath: No, that is not what it says.

Dominic Grieve: It says that
“in the absence of any person, including a party to the proceedings (or any legal representative of that party);”
I read that as going further than just excluding parties to the proceedings.

Tony McNulty: No, because in part, this has to be read with the rules of court, which subsection (6) picks up.

David Heath: Far be it from me to come to the assistance of the Minister but I read it differently, because I am reading in the context of the statement:
“Rules of court may make provision”.
That is the crucial part. It is a permissive power, but to exclude any person. That does not necessarily mean that it excludes all persons.

Tony McNulty: Exactly so, which is the interplay with subsection (6), which sweeps all that up.

Douglas Hogg: We do not know what the rules will do. That being so, we have to interpret the Bill as it is currently before us. Subsection (4)(b) refers to
“enabling the court to conduct proceedings in the absence of any person”—
pausing there, “any person” includes a special representative—
“including a party to the proceedings (or any legal representative of that party)”,
that is, the affected person. But nothing in the Bill provides that the special advocate is not caught by the phrase “any person”.

Tony McNulty: Well, the very next paragraph does precisely that. Subsection (4)(c) says that the rules of court may make provision
“about the functions of a person appointed as a special advocate”
That interlocks with subsection (6). It is necessary to put them all together. As I said at the beginning, I shall make it very clear that the draft rules should be available to the House before Report. The right hon. and learned Member for Sleaford and North Hykeham falls into the trap of isolating a clause without looking at all the interlocking parts both in and across clauses, which is easily done but should not really be done by such a learned and experienced gentleman.

Dominic Grieve: This may be an exercise in semantics and I do not want to get bogged down in a debate that might be somewhat academic. However, on this subject I must say that I happen to agree with my right hon. and learned Friend the Member for Sleaford and North Hykeham.
Granted everything that the Minister has said about special advocates and the fact that they are not one of the parties to the proceedings, the power to exclude any person, as I read it in subsection (4)(b), appears to give the tribunal a power—which might be derived from the previous rules about the Special Immigration Appeals Commission—to conduct proceedings without anybody present at all. The fact that there may be other rules,
“about the functions of a person appointed as a special advocate”,
or all the other matters in that subsection does not prevent the ability to remove everybody from the court proceedings entirely. [Interruption.] The hon. Member for Somerton and Frome says from a sedentary position that that is not right. If he can show me something within the text that persuades me of that, I will happily give way to him.

David Heath: You cannot; you are intervening at the moment.

Dominic Grieve: Quite right, and I have intervened long enough.

Edward O'Hara: Order. If there is going to be a dialogue of interventions, they should come from a standing position.

David Heath: I am sorry, Mr. O’Hara; I am now standing and I can intervene on the Minister, because he is the one who is speaking. I could not intervene before, although I was invited to do so.
We are making a mountain out of a molehill here. Yes, the rules of court could make provision in exactly the way that the hon. and learned Member for Beaconsfield and the right hon. and learned Member for Sleaford and North Hykeham say. It is open to the interpretation that “any” could mean “all” in the context of the rules of the court. Subsequent clauses make it clear that that is not the intention; the Minister is right in saying that.
However, I do not think that one can read “any” as necessarily meaning “all” in this context. It is a permissive power within the rules of court, and it would be for the rules of court, not the tribunal, to determine that. The Minister could usefully avoid the ambiguity in a later draft, but I do not think that it necessarily means what the hon. and learned Member for Beaconsfield says that it means.

Tony McNulty: I appreciate that this discussion is not entirely about semantics, given that we do not have the rules of court in front of us. However, I give the assurance that the interpretation as made will not happen. I grant that the interpretation was not made wilfully; although some of us struggle with the legalese, I take that view rather than the stricter version. It will not happen that the party will be denied a special advocate and this measure is drafted so that the special advocate is in the room rather than otherwise; that is the whole purpose of having the special advocate there.
However, I accept that that is difficult to ascertain on trust from me, without our having the rules of court in front of us. I therefore assure the Committee that I will try to ensure that that happens before Report. Anyway, there will be a subsequent parliamentary procedure on the rules of court; if people remain dissatisfied, they can react accordingly.
Secondly, regarding the words in subsection (4)(a),
“without full particulars of the reasons for the decisions to which the proceedings relate being given to a party”,
they mean that the party and their own advisers will not be informed of the reasons, but they do not mean that the special advocate appointed to represent the party’s interests will not be informed of them. On the contrary, the special advocate will be informed of those reasons and will have an opportunity to make representation to the judge in the interest of the excluded party.
The Treasury notifies individuals of the reasons behind their designation, as far as possible. Where closed-source material has been used to inform a designation decision, it might not be in the public interest to disclose that. However, to the extent possible, given the requirements of national security—as in other such constructions—a gist will be provided.
The point of the special advocate regime, however, is to create a structure in which the court, in hearing a challenge, can consider material that cannot be openly disclosed, and can do so in a way that preserves to as great a degree as possible the fairness to the designated person. However, it necessarily involves withholding certain material from that person, for reasons of national security; if that were not so, there would be no need for a special advocate.
The structure of the scheme and the provisions are very closely modelled on schedule 3 to the Prevention of Terrorism Act 2005, which set up the special advocate regime, as the hon. Member for Somerton and Frome suggested, for control orders. That regime was recently considered by the House of Lords Judicial Committee in the case of MB. Subject to one amendment, which is reflected in clause 58(6) of the Bill, the structure was held to be fully compliant with article 6 of the European convention on human rights. In the Bill, we have sought to replicate, virtually identically, the provisions in the Prevention of Terrorism Act 2005. One addition to the Bill is clause 58(6), which expressly recognises the relevance of the right to a fair hearing under article 6 of the European convention on human rights.
As hon. Members will be aware, there is no special advocate regime for asset freezing—otherwise we would not have the present clauses. That means that it is not possible to rely on evidence that cannot be disclosed openly, unless the judge uses his inherent discretion to appoint a special advocate on an ad hoc basis. We seek merely to formalise that arrangement.
In the only case of this nature to have come to court so far—A, K, M, Q and G v. HM Treasury—the judge did not feel that he had such discretion. He felt that such discretion arose only where the need for a special advocate would be a rarity. In a situation such as asset freezing, where it is clear that closed material will often be relevant, it is for Parliament to impose such a scheme through legislation, not for the judge to introduce one. That is what we are doing these provisions.
There might be circumstances in which a hearing is not necessary or appropriate. The draft rules indicate that all proceedings under this part of the Bill must be determined at a hearing, except when the applicant withdraws the application to set aside the asset freeze, when the Treasury agrees to the asset freeze being set aside, when the appellant withdraws an appeal, or when the Treasury consents to an appeal. In those latter cases, a hearing will not necessarily be needed or required, so we need a little flexibility to enable them to be disposed of without a hearing.

Dominic Grieve: I am sorry to intervene on a slightly peripheral point, but I hope that we will have a chance of dealing with it when we look at the clause, because we have not touched on it. The clause is procedural, but the Minister will be well aware that he has a problem in relation to the power to seize assets under the United Nations order in council. Was there any proposal to address that issue in the Bill?

Tony McNulty: No, in the sense that we are currently appealing against that decision, so the position is very difficult. I cannot say in absolute terms whether the appeal will have run its course by the time that the Bill has completed its passage through Parliament, but I will keep that under advisement. I will not give an absolute no, but I am in the hands of the timing of the appeal process and, of course, its outcome. I would not dismiss what the hon. and learned Gentleman says, but we are really talking about formalising and improving the system as it stands.
To return to the point about how to dispose of cases that do not necessarily need a hearing, we might well need an amendment that adds a phrase such as “where both parties agree to proceed without a hearing”, rather than making things compulsory, as at present.
Concern has also been raised about the interests of a third party with a legitimate claim on frozen funds. The Treasury may—and usually does, when requested—grant licences to allow exceptions to the prohibitions. Licensing is an integral part of ensuring that asset-freezing measures are proportionate, while ensuring that funds are not diverted to terrorist purposes. Licences also ensure that third parties are not harmed by the asset freeze.
Where someone has a legitimate claim to frozen money, the Treasury can grant a licence to allow payment to be made. The third party will be able to bring a challenge to court where they consider the Treasury’s refusal to grant a licence unreasonable or inappropriate.

Douglas Hogg: The Minister is referring to the rights of possibly innocent third parties. Is he saying that those will be dealt with in the rules, or that something in the Bill provides for innocent third parties to make an application to the Treasury?

Tony McNulty: No, I think that I am saying that that will be duly reflected in the rules of court because it is part of the process now.
Amendment No. 207 is not necessary. It would be more appropriate to preserve the court’s discretion to determine whether a hearing is appropriate and to avoid inappropriate wasteful hearings, notwithstanding my point about cases where both parties agree not to proceed with the hearing. We therefore resist the amendment, although we do not dismiss it entirely.
Amendments Nos. 208 and 214 would—quite rightly in the minds of those who tabled them, I guess—delete some or all of clause 57(4), which would entirely defeat the purpose of the asset-freezing provisions in part 5. This part creates, by way of the appointment of a special advocate to represent the interests of the applicant, a way in which the Treasury can reveal to the court and to the special advocate closed material on which it relies, but that it cannot, for reasons of national security or public interest, make available more widely—including to the applicant. I will therefore resist those amendments.
Amendments Nos. 213, 216 and 217 all relate to the protection of fairness, and I agree with the right hon. and learned Member for Sleaford and North Hykeham that it is very important that, in all disputes, the proceedings are, and are seen to be, conducted fairly. Of course, I am going to invoke article 6 of the European convention on human rights, among other things. In a very recent judgment—I think that it was made in October or November last year—a similar special advocacy system was broadly afforded a clean bill of health by the House of Lords. It was an overall judgment. All sides sought clarity from it, although that was not forthcoming in all regards—there was a little bit in it for everybody. The amendments are not necessary for the protection of fairness for the individual.
Amendment No. 225 is a requirement to disclose adverse material. This too runs counter to the whole premise of a special advocate system, which, at its root, has a desire to instil as much fairness as possible in the system. Amendment No. 226 refers to the proposed additional requirement for material in support of the applicant to be disclosed, which, again, runs counter to what we are seeking through the special advocacy system and by trying to be as fair as possible to the designated person.
In summary, we think that putting the special advocate element in the Bill is useful and substantially better than the system that prevails for all concerned at the moment. It is rooted in law and systems that are already in place under control orders, the Special Immigration Appeals Commissionand the Proscribed Organisations Appeal Commission. I do not think that any of the amendments offer a substantial improvement, and I urge that they all be resisted.
 Mr. Hogg rose—

Edward O'Hara: Order. Before I call the right hon. and learned Member for Sleaford and North Hykeham, it is quite clear that the nature of this block of amendments is such that the Minister has said all that he would need to say in the clause stand part debate, so I will group that debate with this one. If, therefore, any member of the Committee wishes to speak to that motion, now is the time to do so.

Douglas Hogg: I understand that decision, Mr. O’Hara, and make absolutely no complaint about it. May I say, however, that I am very unhappy about the response that we have received, and I am going to explain the reasons why over some little length. To begin with, let us be absolutely plain that a special advocate is a very imperfect procedure for guarding people’s rights. A special advocate is not the personal representative of the affected person; he has a special status. He may not reveal large chunks of the evidence that is communicated to him. Consequently, he cannot get the instructions of the affected person as to that material. In substance, the special advocate’s duties are not owed to the affected person, and that is why many special advocates have expressed real concern about and dislike of the procedure. I have never served as a special advocate, but I certainly understand why those who have believe that the system is essentially flawed.
Secondly, we have been told that draft rules will be laid before the House on Report. That may well be true, and I will welcome it. Let us remember, however, that we cannot amend the draft rules. They will considered, I think, under the affirmative procedure, but they may be either rejected or accepted in whole. I dislike rules of such far-reaching consequence being dealt with by statutory instrument, rather than in a Bill.
It is important that the Committee, and through it the wider public, understand how far-reaching clauses 57 and 58 are. They will enable the maker of the rules to publish rules that almost entirely in favour of the Treasury and bear little relation to the interests of the affected person. As has been pointed out, under clause 57(4), proceedings could take place
“in the absence of any person”.
Perhaps that is not the intention, but the special advocate could therefore be excluded.
Evidence will not have to be disclosed to the affected person; only a summary of evidence will be required. In fact, the proceedings could be determined without any hearing at all. No doubt all that is meat and drink to the Treasury, but to an affected person it is pretty ghastly.
Then we examine the rules under clause 58 and find that the disclosure provisions are such that the maker of the rules can, in effect, exclude almost any material from the affected person. There are very few safeguards in the Bill and my amendments are intended to redress that balance. Amendment No. 213 would require the maker of the rules to ensure that
“the manner in which the proceedings are conducted is fair to every party to the proceedings.”
I ask rhetorically why on earth we cannot put that in the Bill. It seems to me that that is the duty of every parliamentarian. Amendment No. 216 would require the maker of the rules to ensure that
“the withholding of the material would not cause injustice to a party to the proceeding.”
Again, why on earth are we not putting that in the Bill?
Amendment No. 217 would require that a summary be
“sufficient to ensure that the conduct of the proceedings will be fair to all parties to those proceedings.”
That seems to be a basic requirement. Amendment No. 266 would require that, in the event of proceedings, the
“material which supports the case of a party”
may not be withheld. My intention is that the Treasury should not be in a position to withhold from parties to the proceedings material that undermines its case or promotes that of the affected person. The Treasury does not have to bring forward any freezing procedure if it is worried about the nature of information or the means by which it has ascertained it. If it does, it seems to me that some basic rules should be observed.
The hon. Member for Meirionnydd Nant Conwy made a perfectly fair point about affected third parties. We are told that the rules will address that, and let us hope that they do, but I cannot see why the Bill does not address it. It is of fundamental importance. I shall not withdraw the amendment. I shall press it to a Division, and the same will apply to stand part. The clause is profoundly unsatisfactory and I am against it.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 10.

Question accordingly negatived.
The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill:—

The Committee divided: Ayes 11, Noes 3.

Question accordingly agreed to.

Clause 57 ordered to stand part of the Bill.

Clause 58

Rules of court about disclosure

Douglas Hogg: I beg to move amendment No. 215, in clause 58, page 41, line 19, after ‘that’, insert
‘provided that the person appointed as the special advocate is present at the consideration of the application,’.

Edward O'Hara: With this it will be convenient to discuss the following amendments: No. 227, in clause 59, page 42, line 12, leave out ‘may’ and insert ‘shall’.
No. 218, in clause 59, page 42, line 18, after ‘excluded’, insert
‘including the consideration of the application referred to in section 58(3)(a)’.

Douglas Hogg: I will speak primarily to amendment No. 215. The clause enables rules to be made about disclosure. I have already pointed out how far-reaching the withholding of relevant information can be. That being so, it is extremely important that someone who has some regard for the interests of the affected person should be present, especially as subsection (3)(a) states that the rules of court must secure
“that the Treasury have the opportunity to make an application to the court...not to disclose material otherwise than to...the court, and...any person appointed as a special advocate”.
Subsection (3)(b) states:
“such an application is always considered in the absence of every party to the proceedings (and every party’s legal representative)”.
Those rules might preclude the affected person or their legal representative from being present at an application. That could have a dramatic effect on the nature of the material that will be presented to the affected person down the track. Who will represent the interests of the affected person at that point? The Minister will no doubt say that the special advocate will, and that is precisely what my amendment says.

Dominic Grieve: I agree with my right hon. and learned Friend that the wording of clause 57(4) could, strictly speaking, despite the comments of the hon. Member for Somerton and Frome, allow everyone to be excluded from the proceedings. However, it seems to me that the special advocate is not a party to the proceedings. I find the wording of clause 58 odd, and I think that my right hon. and learned Friend’s amendment would make an important clarification, but I would not read clause 58(3)(b) as precluding the presence of the special advocate at the application.

Douglas Hogg: I agree with my hon. and learned Friend. It does not, but it does not require that either. I tabled amendment No. 215 because I think it essential that the special advocate’s presence is ensured. I agree entirely with my hon. and learned Friend’s interpretation. That being so, the question is whether we should make it mandatory that the special advocate should be present. I believe that we should, for the reasons that I have outlined. The Bill may permit that, but I want it to be mandatory. That, perhaps, is the only difference between my hon. and learned Friend and me. The Minister might well assert that the special advocate will be present under the rules of the court, in which case I say: let us put it on the face of the Bill.

David Heath: Is it the right hon. and learned Gentleman’s view that the Treasury representative is present at that consideration?

Douglas Hogg: Yes.

David Heath: I am not clear. It seems to me that the Treasury is a party to the proceedings.

Douglas Hogg: The hon. Gentleman is quite right, but if he is good enough to look at clause 58(7), he will find that
“references to a party to the proceedings do not include the Treasury”.
The Treasury representative is there. The person who is not there, and who cannot be there, is the affected person or his personal representative. Nothing says that the special advocate must be there, and that is what I wish to achieve.

Sitting suspended for a Division in the House.

On resuming—

David Heath: The right hon. and learned Member for Sleaford and North Hykeham has a point here—the special advocate should be present when an application is considered. I accept that the fact that there is no provision for it, but that he or she is not excluded leaves open whether or not he or she is there, but the Treasury is inevitably party to the application because it is the Treasury that is making the application. Under any normal arrangement, the special advocate ought to be there and there should be specific provision for that in the Bill. I hope that the Minister will accept that principle and, if he cannot accept the amendment, at least make it clear that that is the intention in the rules of court that he intends to bring forward and which we will see before Report.

Tony McNulty: I am sorry to disappoint because we are where we are, as we were with the last set of clauses. I have not asserted that this will be in the rules of court; I have given the Committee an assurance that it will be. If we are serious in our deliberations to achieve some consistency across our primary legislation, this is lifted almost entirely out of the primary legislation provisions relating to the SIAC, POAC or control orders. There will be the references that the hon. Gentleman requires in the rules of court, and I do give that assurance. That, with the belt and braces approach in subsection 6—nothing in the section or the rules of court made under it is to be read as requiring the court to act in a manner inconsistent with article 6 of the human rights convention—achieves the fairness point on which we all agree. However I do want it to reflect and be consistent with other legislation. That is the only reason for the configuration.

Dominic Grieve: I appreciate the Minister’s point, and it is a fair one, about co-ordinating with other legislation, but I have to say that including amendment No. 215, tabled by my right hon. and learned Friend the Member for Sleaford and North Hykeham, does make perfect sense. There is an oddity about the way the original legislation was drafted. I accept the Minister’s assurances and it is a minor matter, but if my right hon. and learned Friend presses amendment No. 215 to the vote, I will support him because I do not think that I get carried away with the absolute necessity for these two forms of legislation to be identical. The regulations being identical may actually matter rather more and I would assume that they would still be identical. It is an oddity and I think it probably reflects, not a drafting error, but a tendency of the original drafter to short-cut slightly. It seems abundantly plain that the special advocate has to be present.

Tony McNulty: I take the point that it is a relatively minor drafting issue, but that the substance of it is serious. I do not dispute its serious nature. For example, for control orders, the provisions for the presence of a special advocate at the application hearing appear not in the Terrorism Act 2006, but in the rules made under it—now part 76 of the civil procedures rules.
I am not a seeker of consistency purely to compound a previous drafting error. I take the point about the greater degree of eloquence and clarity—to say the least—in the amendment, but that does not mean that I will accept it. I am happy, however, to reconsider the matter on Report. Certainly the important and substantive point, on which we all agree—that the special advocate should be in the room—was well made. As I said, I shall reconsider the matter in relation to the Prevention of Terrorism Act 2005 and other legislative frameworks. If the amendment would work, and it is in order, I shall return with something similar, to put in the Bill, rather than in rules, something on which we all agree. I am more than happy to give the assurance—not an assertion—that I am prepared to do that.

Douglas Hogg: It would be churlish of me not to acknowledge and welcome what the Minister has said, and on that basis I shall not press the amendment to a vote. However, may I say that his remarks rather indicate the importance of putting in the Bill the requirement reflected in amendment No. 215? When enacting legislation, we look back to past legislation, as he has done. He pointed out the previous legislation making provision for the special advocate, and remarked that it did not make provision for the presence of a special advocate in counterpart circumstances. I suspect that this will not be the final terrorism Bill to be considered by this House, and in future Bills I want the Committee to be able to say, “Well, in the Counter-Terrorism Act 2008, special provision was made for the presence of the special advocate in counterpart situations, so we shall do the same.” We build by precedent, so I want to say something to that effect in the Bill. However, he has been gracious enough to say that he will think about it, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question put, That the clause stand part of the Bill.

The Committee divided: Ayes 11, Noes 1.

Question accordingly agreed to.

Clause 58 ordered to stand part of the Bill.

Clauses 59 to 61 ordered to stand part of the Bill.

Clause 62

Initial exercise of powers by Lord Chancellor

Dominic Grieve: I beg to move amendment No. 209, in clause 62, page 44, line 1, leave out subsection (3).

Edward O'Hara: With this it will be convenient to discuss amendment
No. 222, in clause 90, page 59, line 34, leave out from ‘proceedings)’ until end of subsection and insert
‘shall not come into effect until the rules of court have been approved by a resolution of each House of Parliament as provided for in section 62(4).’.

Dominic Grieve: Clause 62 is about the initial exercise of powers by the Lord Chancellor. It explains that the Lord Chancellor may exercise his powers by making rules of court. Subsection (3) states:
“The requirements of subsection (2)(a) and (b)”,
which relate to consultation with the Lord Chief Justice of England and Wales and the Lord Chief Justice of Northern Ireland,
“may be satisfied by consultation that took place wholly or partly before the passing of this Act.”
I would like some clarification from the Minister. Am I to assume that the consultation has already taken place or that it will take place before the Act comes into force? Or should I assume that, in fact, there is no consultation because it took place when the rules of court were brought in for control orders? It will be useful for the Committee to know that. In addition, amendment No. 222 requires the resolution of both Houses of Parliament before any rules of court are brought into effect.

Tony McNulty: Under the Bill, the asset-freezing provisions come into force at Royal Assent. Therefore, if the amendments are accepted, we will have a period in which the rules of court will not have been consulted on or agreed but the personal parts of the Bill will be in force, which is clearly not appropriate. As the provision says, we need to have a full and substantive consultation. None the less, it is highly desirable that the rules of court, which are made under clause 62 and the contents of which are provided for in part by clauses 57 and 58, should have effect as soon as possible after part 5 of the Counter-Terrorism Act comes into force. That is because the rules of court will set out the procedure which is to apply to the appointment of the special advocate, for which provision is made in clause 59.
As the hon. and learned Member for Beaconsfield said, part 2 states clearly that we should properly consult with the Lord Chief Justice of England Wales on the rules applicable in England and Wales, and the same for Northern Ireland. That is right and proper. It is simply a matter of timing so that we have the consultation on the rules of court taking place at the same time as we bring in part 5. The notion of part 5 commencing before the rules of court are in place is inappropriate. The notion that there should be any delay in the implementation of part 5—contiguous hopefully with Royal Assent—would be unfair to the individuals concerned. Therefore, it is a matter of timing. We want as much consultation as possible, but we want to do it in a timely fashion.

David Heath: I understand entirely what the Minister is saying, but he has created a bit of a conundrum here. If the commencement is at the point of Royal Assent, and the proceedings cannot take place without rules of court, the Lord Chancellor is under a duty that applies before consent is given to the Act. That is a very odd thing to put into legislation; a duty that must have been fulfilled before the Bill is an Act in order to apply the duty to the Lord Chancellor. Does the Minster accept that that is a slightly topsy-turvy, Humpty-Dumpty way of making a decision?

Tony McNulty: I shall not delay the Committee in the context of whether I think it is topsy-turvy, Humpty-Dumpty or any other such provision. The key purpose is that part 5 should come into effect as soon as is practicable—at Royal Assent for example. We have just discussed how the asset-freezing provisions can impact very directly on individuals.
To answer the hon. and learned Member for Beaconsfield, there has been a good deal of consultation within the relevant Departments, but not yet with the Lords Justices of Appeal in respect of England and Wales and Northern Ireland, because the draft is not in that sort of shape yet. Yes, that consultation has to happen and, yes, Parliament must deliberate on the matter as well. I assure the Committee that it is only a matter of time.
We should consider the import of the direct effect on individuals of the provisions set out in part 5, notwithstanding the hon. and learned Gentleman’s earlier point about what may or may not happen in terms of the appeal while the Bill travels gently through both Houses of Parliament. Things may be topsy-turvy and Humpty-Dumpty, but I thought that all hon. and hon. and learned Members had agreed that, given the import of the effect that the provisions will have on an individual—they can be extensive and serious—the sooner the measure is in place with a special advocate apparatus around it, the better for all concerned.

Dominic Grieve: If I were being slightly naughty—and I shall be—I would gently say to the Minister that there must be a cost involved in this consultation. If the consultation takes place and, for whatever reason, the Bill never gets on to the statute book, money will have been wasted. I appreciate the Minister’s point, but there is an anomaly about providing a mandatory requirement on the Lord Chancellor to do something that only becomes mandatory when the Bill is enacted, although he will have done it before it all happens. This is not the first time that we have encountered such anomalies. I dare say that, if we changed the rules so that Ministers had to pay out of their own pockets for any money wasted as a result of a Bill not being enacted, this practice might cease.
I am pleased to hear that there will, at least, be consultation on the provisions that we are talking about. It is not deemed, as I thought might be the case, that the previous consultation would be sufficient. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 62 ordered to stand part of the Bill.

Clause 63 ordered to stand part of the Bill.

Clause 64

Certificate requiring inquest to be held without a jury

Dominic Grieve: I beg to move amendment No. 134, in page 45, line 6, leave out ‘national security’ and insert
‘preventing an offence with a terrorist connection’.

Edward O'Hara: With this it will be convenient to discuss the following amendments: No. 32, in page 45, line 7, leave out paragraphs (b) and (c).
No. 185, in page 45, line 9, leave out paragraph (c).

Dominic Grieve: We come now to part 6, which deals with inquests and inquiries and is of some concern to me, notwithstanding the helpful, useful presentation by the Government last week that explained their reasoning in respect of this part of the Bill.
Amendment No. 134 is intended to probe the Minister on the circumstances in which a certificate will be issued for an inquest to be held without a jury. Clause 64 states:
“The Secretary of State may certify in relation to an inquest that,”
in his opinion,
“the inquest will involve the consideration of material that should not be made public...in the interests of national security...in the interests of the relationship between the United Kingdom and another country, or...otherwise in the public interest.”
Owing to the nature of the Bill’s original introduction, my understanding has always been that this provision will apply principally to inquests carried out in respect of matters with a terrorist connection, although perhaps because of the scope of the powers under clause 64(2) it will apply potentially in a much wider set of circumstances. I wish to probe the Government on that point.
The words,
“in the interests of national security...in the interests of the relationship between the United Kingdom and another country, or...otherwise in the public interest”,
provide as wide a definition as one can possibly get. The clause therefore goes much further than dealing with terrorism cases. I had the impression that the sort of case about which we might be concerned is where a terrorist is shot dead by the police, and the police had intelligence information relating to his activities that could not otherwise be made public—something that I can see is a very real possibility. In fact, the wording we are providing here potentially enables such an appointment to be made in a much wider set of circumstances. It is for that reason that I would seek some clarification from the Minister as to what those circumstances may be.

Douglas Hogg: I rise to support what my hon. and learned Friend the Member for Beaconsfield has said, but I do it more robustly than he has done, because he has been rather gentle in his approach to the Government in this matter. I remind the Committee of the iron rule of politics, which I mentioned several sittings ago, that once power is granted, it is always, on occasion, abused. Therefore one has to ask the important question: should this power be granted in the first instance? That takes one to the question, what in fact are we doing in regard to this power?
I acknowledge that jury trials in inquests are pretty rare. In the context of inquests overall, they are a small minority. It is also to be recognised that they are sometimes very important in terms of public confidence. When difficult deaths occur, the public sometimes expects there to be a jury. A good example of that is the jury that Lord Justice Scott Baker convened in the case of Princess Diana. It may be recalled that the Court of Appeal substituted a decision that there should be a jury trial for the previous coroner’s decision that there should not be one. That reflects the importance of jury trials in difficult cases.
What we are doing here is enabling the Secretary of State by himself alone to certify that a jury should not be convened. The circumstances that have to be satisfied are set out in new section 8A(1)(a), (b) and (c). I entirely agree with my hon. and learned Friend that paragraph (c) is couched in the most extraordinarily wide language:
“otherwise in the public interest.”
The Secretary of State may well hold that there are many things that it would not be in the public interest to disclose. Let me give some examples.
Let us say, for example, that a British national died in Guantanamo Bay and his or her body was repatriated to the United Kingdom. At that point, a coroner would have jurisdiction, and I think it is the case that the public would expect there to be a jury-based inquest into why and how that individual died in Guantanamo Bay. However, I can see the Secretary of State saying, “Ah. This is not something that is conducive to our relations with the United States, so paragraph (b) is satisfied.”
Or let us say that a plane carrying somebody who was the subject of extraordinary rendition landed at Heathrow. We know they have landed in the United Kingdom on occasion. Unfortunately, the person being transferred to wherever was dead. At that point, the coroner—normally speaking—would summon a jury; I am sure the public would expect the jury to be summoned. Yet, the Secretary of State could say, “Ah. We do not wish to see our relations with the United States imperilled. We will have this thing without a jury.”
Or let us say there is a situation which is rather closer to what we have in our minds at the moment. Say the police shoot somebody in a house. That does not have to be terrorist based: they just shoot somebody. I can well see that the Secretary of State may be persuaded, for example, that it is not a very good thing for the public to know the engagement rules under which the police are operating. They might dress it up by saying to themselves, “Well, it is not a very good for terrorists to know precisely what the engagement rules are that would justify the armed police opening fire.”
Once we start giving powers to exclude juries from inquests we can be quite sure that on occasion they will be abused. For example, I have a case in mind—perhaps the Committee has a case in mind—where a person was shot in circumstances that are a bit hard to explain. The police may feel uncomfortable about such a matter and seek to persuade the Secretary of State that it would not be in the public interest to allow a detailed inquest to be held and a certificate might be issued. As the Bill is presently drafted there is absolutely nothing to stop that.
A number of amendments seek to address this problem. My own preference would be to have some other figure involved. I suggested that the Lord Chief Justice should be required to agree that the criteria were satisfied. At the very least we should strike out the phrase
“otherwise in the public interest”
because, goodness knows, that is as wide as it conceivably could be. My strong view is that this Committee is in the business of safeguarding liberty and the public interest. We are not in the business of giving the Secretary of State the power to exclude juries whenever it is in his or her opinion in the public interest so to do.

David Heath: I intend to speak to my amendment No. 32, which is in this group. I will preface my remarks by again saying how grateful I was for the opportunity to go to the Home Office and discuss these matters with officials. It was extremely helpful and it is a good Government policy to share views on contentious parts of Bills in that way. Having said that, I am not persuaded that the provisions within the Bill at the moment are an appropriate way of dealing with a very circumscribed issue that was described to us as a problem. I still believe that the much-promised coroners Bill is the appropriate vehicle for reform of the coroners system and for this purpose, notwithstanding that I understand that a long-awaited inquest cannot be held under present arrangements.
Some fundamental principles of the coroners system and article 2 rights with regard to the investigation of deaths are in danger—I put it at no higher than that—of being compromised by the proposals before us. There are two issues here: first, the inquest being held without a jury and, secondly, the inquest being held by an appointed coroner and in private. We are dealing at this point with the certificate requiring the inquest to be held without a jury. The Minister may well say that this would affect only a very small number of cases because the vast majority of inquests—98 per cent., I think—are already held without a jury. The 2 per cent. that have a jury present are the most contentious of inquests and they are the ones that require the most careful scrutiny because the death that has occurred involves an agent of the state. It is right that people should clearly have the opportunity to see that the state is not acting as judge and jury in its own court and that there is proper scrutiny of all the arguments, a proper investigation and a proper verdict. The public is rightly reassured by a jury being present in those circumstances.
It may well be that there is a very limited number of cases where there is a difficulty with that and I understand that. I am not trying to disguise the fact that there may be difficulties where there is evidently an expectation that material will be revealed in the course of an inquest that is prejudicial to our national security. I understand that, but when I question whether a public interest immunity certificate cannot suffice I am told that the measure is better than the PII system because it will ensure that the eventual outcome is made public.

Douglas Hogg: The hon. Gentleman’s point has substance. The situation arises in terrorists trials. On the whole, notwithstanding the jury’s presence, it would be impossible to conduct such trials and admit quite sensitive material. There is no reason in principle why some of that procedure could not apply to inquests, although we may have to wait for a coroners Bill to see such measures put forward.

David Heath: The right hon. and learned Gentleman is right. I can conceive of constructions that would enable that to take place. I accept at face value at the moment the Government’s intention and the arguments underlying it, but I do not agree with it. However, I cannot accept the way in which the proposed new section 8A(1) is drawn because, as has been said, it is in the widest possible terms. The hon. and learned Member for Beaconsfield was extraordinarily gentle with the Government on the issue—I share those gentle criticisms, but I tend to take a much stronger view on the matter than he appeared to. Perhaps he is reserving his wrath for later in the proceedings.

Dominic Grieve: I started gently, but we are debating a number of proposed new clauses and a large number of amendments in the group. The Government should first justify their position. The amendments are probing and I want to hear what the Minister has to say. I am also beginning to formulate in my own mind the necessary response to the Government’s proposals, and I have tabled new clause 13—I fear that we will not debate that this afternoon but on Thursday at the earliest—which may propose alternatives. I remain unhappy with the Government’s proposals, but as a result of the briefing I have a much better understanding of its intentions.

David Heath: I now know that the hon. and learned Gentleman and I are on a rising curve—a crescendo—of indignation, which is welcome. However, even if I accept for the moment the Government’s intentions on the clause and that there might be circumstances in which a Secretary of State should certificate that an inquest should be held without a jury
“in the interests of national security”,
I see not the slightest reason why that argument should be extended to
“the interests of the relationship between the United Kingdom and another country”
or to the sweeping generalisation,
“otherwise in the public interest”.
Amendment No. 32 is not probing and I suggest that amendment No. 185 should not be probing. They would be substantive amendments. The phrase
“otherwise in the public interest”
effectively immunises the provision against any challenge. There is always a circumstance
“otherwise in the public interest”,
that the Secretary of State could adduce to allow him to certificate an inquest. I am not prepared to give such a power to a Minister of the Crown under those circumstances.
In respect of the phrase
“interests of the relationship between the United Kingdom and another country”,
I am getting sick and tired of worrying about the embarrassment of other countries and adapting our legal system to accommodate it. I do not want our legal system to be based on whether it will embarrass a prince of the royal house of Saud or, in the case of military inquests, our allies.
I feel strongly that there should be a clear limitation on the power if we are to accept it, which should be to 
“the interests of national security”.
That is already a wide construction and allows Ministers to argue on a wide front that matters should be included. I see not the slightest reason for extending it with proposed new paragraphs 8A(1)(b) or (c). Unless I hear the most cogent arguments from the Minister, I am inclined to urge the Committee to reject both paragraphs (b) and (c), or just paragraph (c) if that is the Committee’s preference.

Dominic Grieve: My preference is the exclusion of both paragraphs (b) and (c), and to that extent I prefer the hon. Gentleman’s amendment to my second one, but we can reflect on that when we have heard from the Minister.

David Heath: Indeed, I never prejudge the Minister’s persuasiveness on such matters, and I shall listen to him carefully, but my preliminary position is that the Committee should divide on this because it is an important matter of principle.

Elfyn Llwyd: May I add my thanks to the Minister for allowing us to speak to officials about this matter last week? That was very helpful.
I remind the Committee that we are amending the Coroners Act 1988 under which a coroner conducting an inquest generally has discretion to sit with a jury, but there are four circumstances in which he or she must summon a jury. They are when there is reason to suspect
“that the death occurred in prison...while the decease was in police custody, or resulted from an injury caused by a police officer in the purported execution of his duty”
or
“that the death was caused by an accident, poisoning or disease notice of which is required to be given...to a government department”
or
“inspector appointed under section 19 of the...Health and Safety at Work etc. Act 1974”
or
“the death occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health or safety of...any section of the public”.
Some years ago, I sat as a deputy coroner, and one reason why I opted for sitting with a jury was that in some classes of cases—nothing to do with terrorism or the main purport of the Bill—I thought it was in the public interest for the inquest to be open and that a jury should decide the cause of death. More to the point, I believe that summoning a jury in such circumstance reinforced public confidence in the system. We all know the adage that justice must be seen to be done, and there is seldom a better example of justice being seen to be done than a jury sitting in public and deciding a major issue such as the reason for a sudden or inexplicable death.
The various categories of the Coroners Act 1988 assure the public that deaths in such circumstances are not covered up, and that the jury can hear everything and decide. That is clearly important in maintaining public confidence, for example, in the conduct of police and prison officers. I am not denigrating police or prison officers, but if there is a death in their custody, it is clear that to ensure confidence there is nothing better than public scrutiny by a jury.
Another point that has not been mentioned is that although the provision is contained in the Counter-Terrorism Bill, my reading suggests that it is not restricted to cases involving allegations of terrorism, so it could be extended to any situation involving a death in police custody and so on.

Douglas Hogg: The hon. Gentleman is entirely right. If he bears in mind that the Defence Secretary, for example, went to the High Court to try to prevent coroners from expressing a view on the equipment provided to soldiers who died in Afghanistan and Iraq, one may suppose that that could be used to prevent juries from inquiring into the death of servicemen abroad when there could be criticism of their senior officers.

Elfyn Llwyd: I hear what the right hon. and learned Gentleman says, and I have read views along those lines. I do not think it is uppermost in the Government’s intentions at the moment, but he may well be right. What I am concerned about is this: let us say there is a violent incident in a pub, a couple of police officers are called and, during the mÃªlÃ(c)e, an individual is killed. That is a situation in which, now, the coroner would sit without a jury. I would find that extremely undermining of confidence in the police.
I speak as the son of a police officer, the brother of a police officer and the cousin of a police officer—we are a boring family, but there we go. I have a high regard for police officers. I prosecute, defend and do whatever is necessary, but I am not one of those who lines up to knock the police all the time. That has never been my way of thinking, and I believe that this could be extremely damaging to the police. If the provision is used routinely in the circumstances to which I have alluded, it will undermine confidence in the police to a huge degree, and that is the last thing that I—or, I am sure, any other member of the Committee—would want to see happen.
Let us look at the way in which the clause will work. The Secretary of State will decide, for whatever reason—hopefully not for political reasons, though it is not impossible that that may happen in the future—whether an inquest is to be held without a jury.

David Heath: Has the hon. Gentleman noted that in this clause, unlike in previous clauses, it is the Secretary of State—the interchangeable Secretary of State who may be the Home Secretary or another departmental Secretary of State—and not the Lord Chancellor who is specified? Would he have any greater confidence if, at the very least, the words “Secretary of State” were replaced with “Lord Chancellor” so that we had somebody who had a responsibility to perform his duties in the interests of justice, rather than in the interests of the Government of the day?

Elfyn Llwyd: Yes, I think I would feel slightly more confident, but I would not feel cock-a-hoop about that either. I suppose I would feel marginally more comfortable. As it stands in the Bill, the decision is taken by the Secretary of State, whomsoever he or she might be, and it seems that the only potential challenge to that decision to hold an inquest without a jury would be our old friend judicial review in the High Court.
The purpose of a judicial review would be to challenge the legality of a decision not to allow a jury. Given that the grounds for the Secretary of State’s decision could be under the broad and non-specific public interest limb or, indeed, the national security limb, a decision might be very difficult to challenge in practice. The Bill is silent on whether interested parties, such as family or legal representatives, are also excluded.
The basis for deciding that a jury should be excluded is:
“the inquest will involve the consideration of material that should not be made public”.
Therefore, by implication, anyone who is not security cleared is likely to be excluded from proceedings in the same way that they would be from, for example, closed sessions in control order proceedings. Perhaps the Minister will correct me on that if I am wrong.
There are real concerns about this part of the Bill. There are questions about the compatibility of the proposals with the UK’s legal obligations. The European Court of Human Rights, in the case of Jordan v. UK, concluded that there were five essential requirements of the investigatory obligation arising from deaths that occur due to state action or while someone is in the care of a state body: independence; effectiveness; promptness and reasonable expedition; public scrutiny; and accessibility to the family of the deceased. That position has been upheld and confirmed as a minimum standard in domestic cases by the Appellate Committee of the House of Lords, but this exclusion could contravene that.
A more general concern is—I say this quite openly and without malice or anger—that this provision would seem to be tailor made for another Jean Charles de Menezes situation. In such circumstances, no jury would be involved. For the past few minutes, I have been trying to make the case that that will undermine public confidence, which will put us at a gross disadvantage. We always talk about legal niceties, but the bottom line must always be to ensure that justice is seen to be done. I am afraid, however, that the provisions in clause 64 will drive a coach and horses through that very important principle.
If the Minister said, “Well, it will only occur when there are very delicate and important national security considerations”, I might be quite prepared to listen and accept that. However, we must bear in mind paragraphs (b) and (c) of new section 8A(1), which I, like the hon. and learned Member for Beaconsfield, would prefer to vote on. Nobody would disagree on the point about national security, but public interest? Who decides the public interest? It must always be the Secretary of State, but, with great respect, Secretaries of State sometimes think mainly in political terms. The measure simply cannot be right. I support the amendment and hope that the Minister will give us some assurances.

Tony McNulty: The hon. and learned Member for Beaconsfield knows that juries do not sit on Ministry of Defence cases. Coroners in such cases have been extremely robust in their findings, so I do not know how his point was evidence for opposing the Government’s intentions—the clause has nothing to do with such cases. The MOD was challenged on one particular aspect of law and the coroner’s criticism in one particular case. This is not the blanket, cover-all approach that he suggested.
The hon. Member for Meirionnydd Nant Conwy quite fairly invoked Jordan and our ECHR responsibilities, which is precisely what the clause is about—hopefully, hon. Members will have been aware of that from the seminar. It is not just about terrorism. The criteria are drawn broadly to catch not everything, but those cases that should be caught. I do not want to go into the specific case that has, in part, prompted the provision, but it would not be covered by paragraphs (a) or (b). It sits very squarely in paragraph (c) for perfectly reasonable reasons.
The public interest simply cannot be defined as whatever the Government or Secretary of State of the day fancy. There are plenty of tests for determining the public interest, and that relates to article 2 of the ECHR, Jordan and all the other aspects. As hon. Members know, it relates purely to the finder of fact provisions for the coroner and to giving families the closure and clarity that they require, which, for a small number of cases, we cannot give them.
There is no alternative to the provision in the Bill, although I have not read new clause 13, which might be proffered as an alternative. However, a small number of cases are in limbo, with all the incumbent stress and everything else entailed for the families concerned. That was what prompted this provision, not nonsense about Guantanamo Bay, extraordinary rendition and the other rubbish spoken about by the representative of the libertarian right at the back of the room. This is very germane to a small number of cases. It will afford coroners the ability to do their job under article 2 of ECHR and afford some respite to families whose cases are held in limbo.

Elfyn Llwyd: The Minister is obviously engaging deeply with this subject, as I would expect. He said, for example, that families should have closure. My experience as an advocate in inquests, and also from sitting as a deputy coroner, is that families very often leave an inquest feeling aggrieved because they did not get the right verdict. I suggest to the Minister that they would probably be less likely to be aggrieved if a jury decided rather than a single person.
Moving on to a slightly different point, if the Minister is saying that this will apply to only a small number of cases, he does not gainsay the fact that this could be opened up and used as often as was liked. It could be used every time someone dies in police custody or every time someone dies with any peripheral involvement of the police. My point is that that could happen, and I hope that he will tell me that I am wrong.

Tony McNulty: I would contend that that is not the case at all. On closure, I do not doubt that many families leave a coroner’s feeling aggrieved, but, as we have agreed, 98 per cent. of the time there is no jury at all. We are not talking about absolutely closed proceedings from start to finish, in which all the family get for their pain and stress is a result at the end. We are simply talking about affording the coroner a system in which he or she can deliberate on sensitive material to go towards finding the facts of why the death occurred—the whys and wherefores—before going on to the other dimension.
I do not pray the 98 per cent. in aid either, because Members are entirely right that the cases in the 2 per cent. are, by definition, very high profile, not least in terms of the list that the hon. Member for Meirionnydd Nant Conwy read out about the police and other elements. They certainly almost invariably involve state agencies. What we have at the moment, without this sort of provision, in a small number of cases—and that is likely to continue—is stasis, or a state of suspended animation in which two things could happen. The coroner could sit with a jury and a whole host of pertinent but sensitive information that, for whatever reason under paragraphs (a), (b) or (c)—and in the one case we are thinking of, it is paragraph (c) rather than (a) or (b)—would be withheld, so it would come to some sort of unsatisfactory conclusion and, probably, the finder of facts could not find the facts around the death in the first place. Alternatively, we could come up with some kind of compromise that through which we determine—given article 2, given Jordan and given that people have a right to a full explanation—whether there is a way in which deliberations can take place with a sense of the material being deliberated upon, and with as much of the proceedings being in public as possible, albeit without a jury, so that we can get the narrative, the story and the closure that people require.
Why not public interest immunity? Because PII is about withholding material. It is not about going into a closed session to deliberate further on material and then going back into an open session. We require all three limbs.
Is this a satisfactory vehicle to deal with this? No, I would cheerfully leave it to the Ministry of Justice to deal with in the room along the corridor in its coroners reform Bill. However, I think, as people understand from the seminar, that there is at least one pressing case and there might be others. The sooner this is on the statute book as a resolution to this real difficulty—it is not going to go away—the better.
This is not about unnecessarily robust and completely misguided notions. This is about facing a very serious practical difficult and trying to overcome it in the best interest for a small number of cases, certainly in the spirit of Jordan and people being afforded their article 2 rights under the European convention on human rights. I am afraid that the amendments, and certainly amendments Nos. 134, 32 and 185, diminish that. I do not know, and neither does the Committee, what the circumstances will be around the one or two cases that require this sort of certification to get the job done. That is why the provision is necessarily drawn as broadly as possible. I understand the suspicions about a power that is drawn so broadly that, as Ernie Bevin said, you could ride a coach and horses through it. However, that is not the case in the context of the Coroners Act 1988, which is what people should be looking at, rather than just taking these words at face value. The provisions need to be looked at in the context of the rest of section 8 of that Act.
I contend that this measure is about trying to get a public service such as the coroner service doing its job in full, across the whole range of cases that come in front of it, including those that, by necessity, are very difficult. To get to the end game that everybody needs, those cases require the exploration of sensitive material. Yes, some of it is sensitive in terms of national security; some of it is sensitive in terms of the issue about other states; but some of it is sensitive in terms of that broader public interest. It is in that context that the power needs to be read, rather than seen as a huge conspiracy that means that every death created by a state agency or otherwise is scurried away and examination of it held in private.

Douglas Hogg: I understand what the Minister is saying. However, does he understand that our concerns really stem from the fact that the certifying authority is the Secretary of State, who is a politician? Our concerns would be very much less if the certifying authority was not a politician and was someone such as the Lord Chief Justice, or if the Lord Chief Justice had to be party to the certificate. If that was the case my anxieties would be very much diminished and I would be much happier to look at the wider language that the Minister is commending. However, so long as the certifying authority is a politician pure and simple, the answer is that the power is not acceptable to me.

Tony McNulty: That is a fair point and worthy of explanation. I indicated at the evidence session that I would be happy to explore alternatives. Given the importance, as everybody has suggested, of such a decision, I would not want—to be deeply respectful to my right hon. Friend the Home Secretary or indeed any other Secretary of State—to see a Secretary of State scurrying around the skirts of a judge. This is an intensely sensitive decision that should be laid fairly and squarely at the door of the politician from the Executive who makes that decision in as open and transparent a way as possible.
As I think that the hon. Member for Somerton and Frome implied earlier, that is in part how to ensure that the power is not subject to the false and rather rusty iron law of politics that, as he suggested, is that all power put on the statute book is eventually abused. I am happy to look at that suggestion and take it away, and explore the certificating process further before Report. This should not be an issue that divides us; this is a practical and process issue in dealing with a small range of cases.

Elfyn Llwyd: Of course, the experts on the process would be the judiciary, who always act in a non-political fashion. So, I am delighted to hear that the Minister will look at this issue again. It really would improve this measure and also deflate much of what I have been saying if he were to consider putting the Lord Chief Justice in that sort of position.
I am not casting aspersions against any politician. I am just making the point that politicians tend to think politically at times, especially when they are under pressure. So one thing that we should make sure of is that the decision is taken at arm’s length. I do not always say that judges are right, either; I am not saying that. However, we would have that particular safeguard, which is a very important one indeed.

Tony McNulty: Given the list that the hon. Gentleman read out in terms of police custody, prison, police action and other situations and given the point that the hon. Member for Somerton and Frome made about many of the areas that we are discussing involving the forces of the state in some way or other, my starting point is to leave the certification with the political masters. However, I take the point about getting a deal of other cover in the judiciary. Although I am not deeply enamoured by it, I will certainly take the suggestion away and have a look at it. However I do not think it helps to overcome the practicalities that we face with this system in a very few cases and the issue that everyone recognises of sensitive material that is not always in the national interest, which is why I prefer the three limbs. The amendments would take away one and then two of the limbs and that would not take us a whole lot further in tackling the practical problem that we face in affording people their article 2 rights and in the context of Jordan, which is why I am happy to say we will resist the amendments.

David Heath: This has been an interesting debate. The Minister asks us to not see it in the context of the Bill and of the other provisions, but we cannot avoid doing that. What we have here is a proposal and the proposal is that a Minister of the Crown can decide, because of facts that he or she knows and the rest of us do not, that the circumstances of a death will not be put before a jury in the first instance and, secondly, that it will be put before a selected coroner—not one of the normal coroners, but a coroner appointed by the Secretary of State for that purpose to investigate what is, by definition, a death involving agents of the state. It is not surprising that people are concerned about that, notwithstanding what I believe to be the good intentions of the Minister. It is not surprising that people are concerned about that in the context of a counter-terrorism Bill and not a coroners Bill that seeks to reform the process of coroners’ courts.
I accept that there may be circumstances in the context of the policing of terrorist activities where a person may lose his life and the circumstances are not available to be released to the public gaze because of intelligence matters, ongoing investigations or a myriad of factors that do directly impinge on national security. I am not dog in the manger about this; I am very happy to engage with the Minister to see if we can find a better way through, as he quite appropriately said at the beginning of our deliberations. He will see that I tried to put down amendments to try to improve this part of the Bill in ways that would reduce some of the anxieties about the Bill and certainly the later clauses dealing with the appointment of a coroner. However I am still unconvinced that this is an appropriate vehicle, particularly in the context of the interlocking of the clauses, to extend this matter beyond national security.
This is the Counter-Terrorism Bill; it is about national security, and we are asked to entrust to a Minister of State the decision not to allow matters, which would normally be put before a jury in an inquest, to go before a jury or a normal coroner on the basis not of national security, but of an undefined public interest or the relationship between the United Kingdom and another country. That is inherently a political judgment. We are now not talking about the interests of national security; we are talking about an intrinsically political judgment—how are we going to square this with the Foreign Secretary of X state, who is hopping mad because we might be doing something that will concern their interests. How are we going to tell the Foreign and Commonwealth Office how to respond in the embassy in wherever it is when it has local officials breathing down its neck, saying, “This is the last time we co-operate with you, chummy, because you are allowing this inquest to go ahead and it is going to greatly embarrass us when it hits the national headlines.”? The Secretary of State is required to make a political judgment about that and then to change our legal process in respect of coroners courts to accommodate it. That is the difficulty that I have with the clause. I hope that we can find an accommodation on this part of the Bill and a way of moving forward, but we cannot do so on the basis of what is currently in the Bill. If the opportunity arises, I shall press amendment No. 32.

Dominic Grieve: Perhaps I should perhaps apologise to the Committee, and certainly to the hon. Gentleman, who made the criticism that I was rather tentative in describing these as probing amendments that were tabled to try to get some clarification of what the Government were trying to do. I accept that there was a certain tentativeness, partly because—I say this openly—I find this part of the Bill one of the most problematical.
Part of the problem is that we have come upon the matter almost unexpectedly. We have Mr. Rebello’s letter of clarification, but there was no prior consultation about the measure, let alone its link with a new coroners Bill. The Minister freely admitted that when he gave evidence to the Committee. It comes in a counter-terrorism Bill, but, as the Minister has admitted, its scope is much wider. It goes to the heart of whether there should be major reform of the coroners’ process.
We know, and the hon. Member for Meirionnydd Nant Conwy helpfully set out this based on his experience, the criteria that coroners use. I have experience of appearing in coroners’ courts. In particular, he highlighted the circumstances in which it is provided expressly that a coroner should empanel a jury. Without doubt, the reasoning behind that provision in the 1988 Act was to maintain public confidence in the transparency and independence of the process.
Unlike any other process in this country, the coroners’ process is inquisitorial, not adversarial. It is a form of inquiry, and that was precisely why, when the helpful briefing began to explain the Government’s intentions to me more fully, I began to see that there was some force in the Government’s arguments. They were certainly able to deflect me from the view that I had taken on Second Reading, when I was simply astonished that the measure had been introduced and worried about its implications for public confidence and the independence of the coroners system. The Government provided me with a degree of reassurance, and I began to see that the appointment of coroners was not a sleight of hand by which they would get their placemen to sit on coroners’ inquests.
I could also see, perhaps even before I received the briefing, that problems would be raised by the Government’s having at their disposal in an inquisitorial proceeding information that was likely to be highly relevant to a decision about why somebody died at the hands of the state, but could not be used under the Regulation of Investigatory Powers Act 2000. Moreover, although there has been talk of having specially vetted juries, such information could be brought before a jury only with great difficulty. As Mr. Rebello made clear in his evidence, it could be brought before a suitably cleared coroner.
The Government clearly have a problem, and they are entitled to introduce legislation to try to solve it. My difficulty is that the more I look at the detail of what they have drafted, the more worried I am about the unintended consequences of it. It seems to have been drafted in some haste. I remain anxious, and unresolved in my own mind, about what safeguards there should be to ensure that any change to the system maintains public confidence and ensures the outcomes that we want to see.
I freely accept that these are probing amendments. I can see, for example, that the Minister has an argument when he says, “The interests should not just be national security; they should go wider,” because we want to cover cases that involve putting intelligence material before coroners, but they are not national security cases. One can see also, for example, that the cases may include police intelligence that may be relevant. Those changes may be quite progressive, but on the other hand, when one sees introduced as a separate category the words
“in the interests of the relationship between the United Kingdom and another country”
that may go beyond the interests of national security or the public interest, it becomes difficult to fathom what we are dealing with—except embarrassment. All that highlights why there should have been proper pre-legislative scrutiny and an opportunity for the provision—in an ideal world—to be part of the coroners Act. Indeed, I am by no means convinced that the proper place for it is not in a future coroners Act, even though there may be a problem with an existing case. It may even be worth delaying an inquest for another 12 months, or however long it is, for the sake of having it in a coroners Act. I remain unhappy about the structure of the clauses.
May I take another example, Mr. O’Hara? I hope that you will forgive me if I widen the scope, but as we are having a more general debate about the issues, it would be quite beneficial. I mentioned that I had tabled new clause 13. Quite apart from the fact that we cannot consider it this afternoon, because I was able to start formulating it only after I had heard the briefing at the Home Office, and was therefore unable to table it until yesterday, I remain rather unsatisfied with it. My difficulty with the new clause is that it should not be the Secretary of State who provides a certificate of authorisation; there should be an application to the court—probably involving the Lord Chief Justice.
I am the first to accept that the new clause is far from perfect, but that again highlights the difficulties that we will have in trying to make this aspect of the Bill acceptable. Our one opportunity may be on Report, which, to return to my apology at the start of these remarks, is one reason that I have tended to treat most of the amendments that I have tabled as probing amendments. They would not leave the Bill in an acceptable form, even if the Minister accepted them.
Nevertheless, the Opposition must take some decisions. Unless I am satisfied with some elements of the Bill, I am likely to vote against them, so I put the Minister on notice that I shall probably vote against clause stand part in each and every case. The question arises as to whether the Bill can be improved in order to demonstrate the Committee’s concern prior to our doing so.
On the basis of what the Government are trying to achieve, granted my reservations about everything else, I still do not understand how new section 8A(1)(b),
“in the interests of the relationship between the United Kingdom and another country,”
can feature. As the only way of registering that point would be to support amendment No. 32, tabled by the hon. Member for Somerton and Frome, I am minded to do so, if only to indicate to the Minister—no more than that—where I am unhappy with the Bill. The Minister has an argument that it would be better to delete new paragraph (b) while leaving in new paragraph (c), but that illustrates absolutely the areas of difficulty that we have.
I hope that my identifying where the problems are has been helpful to the Minister. In summary, I see them in two forms. First, I am anxious about getting rid of a jury, and that the convenience of being able to allow in such material might in the medium term fatally undermine the use of juries in cases where the police shoot people, as in the example given by my right hon. and learned Friend the Member for Sleaford and North Hykeham. In such circumstances, we might end up with very few inquests with juries, because we have not thought through the implications of the provision at all. The way in which it was introduced was to say, “This is about intercept evidence in the case of terrorists,” but we now know that it is not. Secondly, I worry very much that the issuing of a certificate by the Secretary of State without a proper mechanism for judicial scrutiny or authorisation is also fatally flawed. That is what I was trying to deal with in new clause 13. 
With your permission, Mr. O’Hara, what I propose to do, imperfect as it is, is not to press the lead amendment no. 134, though I hope that we might have an opportunity to vote on amendment no. 32. Furthermore, although we shall carry on with our probing amendments, I put the Minister on notice that unless I am satisfied that we are putting together a package that is acceptable, it is my duty as an Opposition spokesman to vote against the various clauses making up this part of the Bill, until such time as we have it in an acceptable form. That will be a challenge for the Minister, but I want to make it clear that if he can come up with such a package for Report, I for one will be quite happy to support it.
I beg to ask leave to withdraw amendment no. 134.

Amendment, by leave, withdrawn.

Amendment proposed: No. 32, in clause 64, page 45, line 7, leave out paragraphs (b) and (c).—[Mr. Heath.]

Question put,That the amendment be made:—

The Committee divided: Ayes 6, Noes 10.

Question accordingly negatived.

Dominic Grieve: I beg to move amendment No. 186, page 45, line 14, leave out subsection (3).

Edward O'Hara: With this it will be convenient to discuss amendment No. 187, page 45, line 20, leave out subsection (4).

Dominic Grieve: This continues our scrutiny of this section of clause 64. Once the certificate has been issued in relation to an inquest, the inquest must be held or, as the case may be, continued without a jury, so that if a jury has not been summoned, the coroner must not summon a jury. If a jury has been summoned, the coroner must discharge the jury. Subsection (4) says:
“Accordingly, the following do not apply in relation to the inquest whilst the certificate has effect”,
and then effectively says that all the existing coroners rules can be overturned and ignored, including the requirement to have a jury in the circumstances that were so neatly encapsulated by the comments of the hon. Member for Meirionnydd Nant Conwy.
Is that what we really want to do? First, I was slightly puzzled on a matter of information as to the need for these certificates to be issued even when the coroner had already summoned the jury. I would have assumed that its only application could be to the case which is currently pending and not in future. I wonder whether that is necessary. Even if the Government wanted to do what the provision seeks to achieve, why would the certificate not be issued prior to the summoning of the jury?
Secondly, to return to what we were debating a moment ago, have we thought through the impact of getting rid of juries in such cases? Perhaps we could focus for a moment on that. We have juries in coroners’ inquests for good reasons: primarily, as I said, to command public confidence that the system is independent and transparent and that it is possible for verdicts to be returned that might be inconvenient to the state. That is particularly the case, although not necessarily exclusively, where, as here, we are dealing with people whose lives are likely to have been taken by state action. We have not had an opportunity to debate the issue through.
I have no doubt that lots of inquests have taken place in the past 30 years in which intelligence information that might have been of interest to a jury was not made available. Of course, how coroner’s inquests work is sometimes criticised, but it has not been suggested before that that is a reason to get rid of juries in those circumstances. We have not considered whether specially vetted juries could be used. We do vet juries; it has been done, perfectly successfully, in national security cases. I expect that, because it is an inquisitorial process, the information laid before a coroner’s inquest is likely to be fairly circumscribed, rather than, “This is a download of all the intelligence material that we have had about this case over the last six months.” In those circumstances, it might be possible to have a jury if we were prepared to vet one specially, but again, we have not debated that issue at all. As we consider the matter in Committee, I hope that the Minister will respond on that.
I hope that the Minister can also amplify his later remarks in justifying the need for the provisions. To return to why I think that they appear in the Bill, history shows that when trying to legislate over a single problem that has arisen in a controversial and complex area, it is terribly easy to get it wrong.

Tony McNulty: I utterly agree, but that is not what we are doing. The provisions might have been prompted by one or another case currently stuck in the system, but they have been designed and written as regular law, not just a law to respond to those specific circumstances. However, I understand the difficulty of how the provisions relate to the much-vaunted and heralded reform of the coroners system. That is a completely fair point.
I resist the amendments, because they negate the whole purpose of the clause, which is to allow a jury either to be discharged or not to sit in the first place, but I am conscious that it might be more satisfactory if, between now and Report, we could at least explore some way in which the provision relates to the substantive matter of all the wider reforms in the coroners reform Bill. Aside from the matters before us now, I am perfectly prepared to take that away and consider it in terms of clauses 64 to 67. The fellow from the Coroners’ Society was honest. He said, “Well, yes, someone did mention it back in January,” but I apologised for the fact that there had not been as much concentration as there should have, notwithstanding Mr. Rebello’s comments.
Let us be clear. I repeat that this is not about going counter to the ECHR; it is the reverse.

Dominic Grieve: I appreciate that.

Tony McNulty: The hon. and learned Gentleman might, but not everyone in the room does. It is worth repeating. The clause deals with a practicality that is before us now in respect of one case, although it certainly only arises in a few cases a year. The clause says that there are ways in which we need to dispatch and deal with cases that sometimes require a coroner to sit without a jury, not least because he is considering sensitive material. I cannot accept an amendment that would mean keeping the clause but not including the provision that there may not be a jury or that a jury should be discharged.
I assume, and unless I am corrected I will stand by this, that the twin points are included because in some circumstances, as the odd case develops, sensitive materials that might aid the fact finding may come to light that were not apparent in the first instance. The provision is intended for that reason, rather than any other.
I am loth to call these amendments wrecking amendments, although they are certainly negating amendments, and they are certainly in order, otherwise they would not be on our order paper. Nevertheless, I urge the Committee to resist them.

Dominic Grieve: I shall avoid taking up the Committee’s time on votes on individual probing amendments. I have to accept that completely redrafting the clause is beyond me, although I may attempt to do it before Report. However, my gut feeling is that that is required. If we were able to redraft the clause, we might even be able to point out to the Government that we are trying to achieve most of what they intend—albeit in a form that I find much more comfortable and acceptable in my anxiety about maintaining transparency and confidence in the system—and trying to ensure that the process has proper judicial oversight, which is lacking at the moment.
I will not press the amendment to a vote; I am simply using it to tease out this important debate. Considering the Bill clause by clause and subsection by subsection helps me understand the issues that arise. First, we need a system in which judicial oversight is seen to be operating and in which the mechanism is not triggered by the Secretary of State’s certificate. Secondly, we need some confidence that the necessity of getting rid of a jury has been thought through. Thirdly, we need to maintain public confidence that, under the system for appointing coroners—the Minister might be following the Home Office’s briefing and might be better able to satisfy me of the bona fides of the Government on this matter—the coroners are independent and that existing coroners, preferably, will be doing the exceptional work that is required.
Subject to those comments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve: I beg to move amendment No. 188, in page 45, line 30, leave out paragraph (b).

Edward O'Hara: With this it will be convenient to discuss the following amendments: No. 189, in page 45, line 43, leave out subsection (3).
No. 191, in clause 65, page 46, line 14, leave out paragraph (b).
No. 193, in clause 65, page 46, line 39, leave out from ‘must’ to ‘and’ in line 40 and insert
‘consider all evidence presented to the inquest prior to the appointment of the specially appointed coroner’.

Dominic Grieve: Amendment No. 188 is much the same as an earlier amendment.
Amendment No. 189 would leave out subsection (3), which says:
“This section has effect in relation to inquests that have begun, but have not been concluded, before the day on which it comes into force as well as to inquests beginning on or after that day.”
I assume that that is to cover the particular case that we were told about and for no other purpose, but I want the Minister to clarify that.
Amendment No. 191 would leave out paragraph (b) of new section 18A(3) in clause 65, which comes after the words,
“A specially appointed coroner may be appointed under this section”
and says:
“in relation to an inquest that has begun, at any time before its conclusion.”
Presumably, that provides for the removal of the existing coroner as and when the information comes to light during an inquest. I would be grateful for clarification on that point.
Finally, amendment No. 193 would mean that the coroner would have to
“consider all evidence presented to the inquest prior to the appointment of the specially appointed coroner”.
The Bill states:
“If the inquest has begun...the specially appointed coroner must proceed in all respects as if the inquest had not previously begun”.
Effectively, the Minister is saying that the original inquest will be quashed and abandoned and that a completely fresh process will begin. Otherwise, I would expect that the coroner would be able to take account of what had been said earlier. For example, what if a critical witness who has given evidence at the earlier coroner’s inquest is for whatever reason not available—they might be dead or unwell—to give evidence at the second inquest? Can his evidence in those circumstances be used and, if so, in what form?

Tony McNulty: I can give the hon. and learned Gentleman the assurances that he seeks, but let me take away and explore the notion further. It is entirely right if it is discovered part way through a hearing that a special coroner rather than a coroner is necessary that the proceedings should be treated as if from the beginning. That is perfectly reasonable for the coherence of the clause. However, I accept the point on how to utilise evidence given by a significant witness who has appeared earlier but who, for whatever reason, is incapacitated—death, I suppose, is the most excessive example. That was an entirely fair point, and I shall take it away and explore it.
However, broadly, for now, within the context of accepting the import of clauses 64 and 67 and the system that I am proposing, there is a logic to the notion that if sensitive material in the case requires a special coroner that means that the case cannot proceed, the special coroner should treat the process and the hearing as though he is starting from the beginning.
The hon. and learned Gentleman was right to say that proposed new subsection (3) deals with the fact that there may well be extant cases that need immediate attention as and when the measures come into force. I can say no more on that.
The amendments are useful for exploring the matter, but I can, in all instances, give him the assurances that he seeks, and ask that he does not press to a Division.

Dominic Grieve: Again, the amendments are probing and I do not intend to press them to a Division. I am grateful for the Minister’s comments, particularly on amendment No. 193, which concerns what would happen to evidence that was given to an abandoned inquest.

Elfyn Llwyd: There is one way to deal with that. What would usually happen? The earlier statement would be served under the Civil Evidence Act 1995, and could then be admitted as evidence.

Dominic Grieve: I take the hon. Gentleman’s point: indeed, that is what one would usually expect to happen. The oddity is that the wording of the measure makes one think that it might be prayed in aid to prevent that. However, that classically illustrates the sort of problems that I have when I read the Bill. I am in relative ignorance as to what the Bill may do.

Douglas Hogg: Will my hon. and learned Friend remind me—I do not remember because it is a long time since I appeared in coroner’s court—whether a transcript of evidence is given in front of the coroner? If not, it would be quite difficult to use previously given evidence in a freshly convened inquest.

Dominic Grieve: That is a very interesting question. I do not think that there is any reason why it should not be transcribed, but in my experience, many coroners’ inquests are not transcribed. I can see the hon. Member for Meirionnydd Nant Conwy nodding from a sedentary position. I do not remember any transcript being available at the last inquest that I did. We were completely dependent on the notebooks of the counsel and coroner to tell us what was said. In the inquest into the death of the Princess of Wales, I rather suspect that there was a transcript available. In fact, I would be very surprised if there were not.

Elfyn Llwyd: The answer to his question is that some coroners routinely tape evidence, so transcripts are available on request. Equally, half of coroners rely on the old-fashioned system of notes being taken.

Dominic Grieve: That highlights the unusual nature of coroners’ proceedings. As the Minister will know—or perhaps he will not know because the new coroners Act will not fall within his remit—coroners’ inquests are very dependent in their conduct on the character of the coroner. There is a considerable degree of informality. Limited financial resources are available to support coroners in their work. Often, preliminary meetings take place at the coroners’ offices. If the coroner is also a solicitor, they will be held at the local solicitor’s office in which he happens to be practising. Sometimes there is not even a purpose-built building in which the inquest can take place, so somewhere has to be found. Yet, coroners’ inquests do very important work. Improving that work is something that the new coroners Act is designed to try to achieve. We have to ensure that whatever we do here, we do not put a spanner in the works. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Dominic Grieve: I hope that the Minister will not take this in bad part, but, for the reasons that I gave earlier, I have to urge Members of the Committee not to support something that is in a form with which they are not comfortable. I am not saying that I am opposed in principle to what the Government are trying to do, because I am not. I can understand that there is an important issue with which the Government are trying to wrestle. That was made quite clear when we had the briefing at the Home Office. At the same time, is clause 64 in a form with which I am content? The answer must be that it is not. At the end of the day, the urgency of the issue is not such that even with a suspended inquest lurking, if the Government were told that they could not proceed unless they got their act in order before Report, it would be the wrong thing to do. For those reasons I oppose clause 64.

Douglas Hogg: I entirely agree. I am less generous than my hon. and learned Friend. It is not just that I am not comfortable with the clause; I disapprove of it. We are giving to the Executive a power that we should not give. If we are going to give it, it needs to be much more restricted than what we are proposing in the Bill. The power to order an inquest without a jury is drawn far too wide. It is within the exclusive control of a politician, and I am not prepared to accept that politicians in this context always act in good faith. My own belief is that on occasion, they act in bad faith and we have to guard against that latter situation. I personally will vote against this whatever my hon. and learned Friend does.

Question proposed, That the clause stand part of the Bill.

The Committee divided: Ayes 10, Noes 6.

Question accordingly agreed to.

Clause 64 ordered to stand part of the Bill.

Clause 65

Specially appointed coroners

David Heath: I beg to move amendment No. 178, in page 46, line 6, leave out ‘Secretary of State’ and insert ‘Lord Chief Justice’.

Edward O'Hara: With this it will be convenient to discuss the following amendments: No. 220, in page 46, line 7, after ‘inquest’, insert
‘provided that such a person has been specifically approved for the purpose by the Lord Chief Justice of England and Wales’.
No. 179, in page 46, line 9, leave out from ‘coroner’ to end of line 11 and insert ‘and
(b) is included in a list of coroners prepared by the Lord Chief Justice for that purpose;
(2A) Any coroner may apply to the Lord Chief Justice to be added to a list prepared under subsection (2).’.
No. 181, in page 47, line 23, leave out ‘Secretary of State’ and insert ‘Lord Chief Justice’.
No. 221, in page 47, line 23, after ‘State’, insert
‘, with the consent of the Lord Chief Justice of England and Wales,’.
No. 182, in page 47, line 25, leave out ‘Secretary of State’ and insert ‘Lord Chief Justice’.
No. 183, in page 47, line 31, leave out ‘Secretary of State’ and insert ‘Lord Chief Justice’.
No. 184, in page 47, line 32, leave out ‘Secretary of State’ and insert ‘Lord Chief Justice’.

David Heath: We now move on to the way in which, when a certificate has been issued for there to be no jury in a coroner’s court, a coroner can be specially appointed to displace the coroner who would have heard the inquest at the behest of the Secretary of State. The purpose of this group of amendments is to say that that simply will not do, and that it is inappropriate for the Secretary of State to appoint the person who heads the court—the coroner—instead of it being a judicial appointment. That runs counter to any principle of judicial independence that we may have. It simply cannot be right that in the first instance the Secretary of State decides that it is inconvenient for an inquest to be held with a jury and for certain matters to be put before an open court, and then to decide who will sit in judgment on that closed matter in the coroner’s court.
I am not unsympathetic to some of the Government’s arguments, but I am totally unsympathetic to the view that any Secretary of State should take that responsibility on himself or herself. I am looking for an alternative way in which to ensure that as near as possible, within the constraints that the circumstances require, an ordinarily appointed coroner leads the inquest and hears the evidence. It is clear that for that to be the case, the coroner must be vetted if they are to look at material that is not available to the general public. There must be a vetting process, and then there must be a process to indicate which coroner in those circumstances should preside in a case when there would usually be a territorial requirement but that requirement has been displaced.

Tony McNulty: I am broadly with the hon. Gentleman, but we do not have a national coroner system at the moment. We may have, after the reform Bill, but we do not at the moment. If the hon. Gentleman shuts up now and withdraws his amendment, I shall happily, with him or without him, go away and consider the matter. I am not terribly bothered whether it is the Secretary of State, Lord Chief Justice or whoever, but I want to explore the matter further. I just need a device to get said individuals in place to do what I want them to do under clause 64, and I fear that the longer the hon. Gentleman goes on, the more I am dissuaded.

David Heath: I am not going to be dissuaded from making the case, Mr. O’Hara, during the Committee stage of a Bill. The Minister’s response is what I anticipated. I do not believe that he can be wedded to the idea, which is so corrosive to the principle of an independent judiciary, that the Secretary of State should decide who should be the coroner. First, if it were possible for the Lord Chief Justice to take that responsibility, that would put it into the judicial sphere rather than the political sphere. Secondly, it should be possible for any coroner on the coroners’ list—I agree that we do not have a national coroner system at the moment—to be able to apply to be included on the list, subject to the vetting procedure. Many will not want to go through that procedure because it is onerous, and they may be happy not to be on that list and not to hear such inquests, but they should have the opportunity to do so and to be on the list. Once we have a list, the Lord Chief Justice should be able to select the coroner who is most appropriate to hear the case, having regard to the geographical situation and any other circumstances that might apply. I think that we can trust the Lord Chief Justice to do that in a dispassionate way and to take an appropriate decision, and that is what I intend by my group of amendments.

Elfyn Llwyd: In the interest of brevity and mindful of the Minister’s stark warning, I just say I agree.

Douglas Hogg: I am going to say a bit more than “I agree”. It is extremely important that we should substitute somebody such as the Lord Chief Justice for the Secretary of State, because after all, we want to go back to where we start. Where we start from is that the Secretary of State has certified that in his or her opinion, the matter should not be heard with a jury. We are then going on to the next stage of contemplating a specially appointed coroner to determine an inquest that has already been the subject of the Secretary of State’s certificate. The public has got to have confidence in the procedure and I should have thought that the public would be very concerned if, in such a situation, the Secretary of State were then to nominate a specifically appointed person.
There is a further dimension to this that arises out of the European convention on human rights. This Committee will have in mind that there has been a growing recognition, as a result of the European convention, that the Executive has to be distanced further than was the case from judicial actions. I have in mind two matters—for example, the fact that the Lord Chancellor is no longer able to sit on appeals. That arose because the Government understood, in my view rightly, that this was incompatible with the European convention because, it was said, it was wrong for the Executive to have any role in a judicial process. 
Another consideration that comes into play is perhaps closer to this one. The Committee, or some of it, will keep in mind that there was a process for appointing assistant recorders. The status of assistant recorders has, I think, been wholly abolished and replaced by full-time recorders and the reason for that, in my understanding, was that it was felt in Government, and I think again correctly, that it was incompatible with the European convention to have a judicial process conducted by somebody appointed ad hoc, that is to say without certainty as to the term of his or her appointment. Once you have got yourself a specially appointed coroner, you are in precisely that position and therefore not only as a matter of perception, but I think as a matter of substantive law, it is extremely important that the Secretary of State is not the appointing authority, or at least is not the sole appointing authority.
I am grateful to the Minister for saying he is not wedded to this particular concept, because if he is, he will probably lose it, if only on judicial review. I hope he will come forward with some solution along the lines put down in the various amendments. I personally think it best of all to have the appointment of the specially appointed coroner by the Lord Chief Justice, and that is something that I would be content with.

Dominic Grieve: I agree with the points that have just been made by my right hon. and learned Friend. In fairness to the Government, when we had the briefing at the Home Office, it became clear to me that in their intention of having specially appointed coroners, the Government were not attempting, as I said earlier, to put in functionaries who would do their bidding, but that primarily they would be looking to existing coroners and to having a small specialist panel who had been specially vetted for the purpose. In addition, it is not unheard of—it has just happened with the inquest on the Princess of Wales—to appoint a High Court judge or a Lord Justice of Appeal as a coroner. All those things provide flexibility in the system, which I would not wish to see removed.
The fact remains, however, and I am pleased the Minister seems to have taken this point on board, that the appointment ought to be by the Lord Chief Justice. Indeed, the argument in favour of the Lord Chief Justice appointing coroners is even stronger than that in favour of him deciding on what the interests of national security may be, and it would be very much easier for him to do. That might be one of the reasons why the Minister seems to be more attracted to that proposal than to the others for the Lord Chief Justice’s role. I strongly urge the Minister to consider his role in both circumstances, but particularly in the appointment of coroners.

David Heath: I shall take the Minister’s earlier intervention as an expression of his firm intention to reconsider the matter before Report. I think that he is very wise to do that. If left uncorrected, Members will continue to feel strongly about it on Report, and I am absolutely certain that those in another place will amend it to provide for the Lord Chief Justice to have this role, if it is not commended. On that basis only, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve: I beg to move amendment No. 190, in clause 65, page 46, line 7, after ‘inquest’ insert
‘subject to ratification by vote in both Houses of Parliament’.

Edward O'Hara: With this it will be convenient to discuss the following amendments: No. 192, in clause 65, page 46, line 16, leave out ‘whether’ and insert ‘unless’.
No. 180, in clause 65, page 46, line 37, at end insert—
‘(c) the inquest must be held in the place in which it would have been held if no coroner had been specially appointed under section 18A.’.
No. 194, in clause 65, page 47, line 8, leave out subsection (4).
No. 228, in clause 65, page 47, line 13, leave out subsection (5) and insert—
‘(5) Any such statutory instrument shall be subject to an affirmative resolution of both Houses of Parliament.’.
No. 195, in clause 65, page 47, line 16, leave out subsection (6).

Dominic Grieve: The amendments are mainly of a probing nature, although some are more specific than others. I shall run through those of particular interest to me. Amendment No. 190 would provide that in the exceptional circumstance of the issuing of a certificate, it would have to be subject to a ratification by both Houses of Parliament. That is a rather ponderous process. I think that the system of having a Lord Chief Justice is probably preferable, but if it is to be used in highly exceptional circumstances only, the amendment might provide for an alternative way forward.
I do not think that amendment No. 192 adds anything to the substance of the discussion, but amendments Nos. 194, 228 and 195 are important to the latter part of clause 65. I shall begin with amendment No. 194. Proposed new section 18B(4) to the Coroners Act 1988 states:
“The Secretary of State may by regulation made by statutory instrument provide for this Act and the law relating to coroners and coroners’ inquests to have effect in relation to specially appointed coroners with such modifications as may be specified in the regulations.”
I appreciate why that might be required, but the power is far too sweeping to be given to the Secretary of State. If we are to have regulations, I would expect them to be like rules of court and approved by the Lord Chief Justice, even if they are put forward by the Lord Chancellor. That would be a better way to do it. Furthermore, we will obviously require the opportunity to vote on the regulations. The system cannot simply provide for a vote on annulment. It must be decided on a positive vote by both Houses of Parliament, so I would expect it to be decided by affirmative resolution.
Finally, amendment No. 195 is a probing amendment that would leave out proposed subsection (6):
“The Secretary of State may pay a specially appointed coroner such remuneration and allowances as the Secretary of State thinks fit.”
I would expect procedures to be in place to ensure that that is not done on an ad hoc basis, as the provision seems to imply it would be. I am not sure how Lord Justice Scott Baker was remunerated for his work as the coroner in the inquest into the death of Diana, Princess of Wales, but I assume that it came out of his salary for sitting as a Lord Justice of Appeal. I would not expect there to be a special remuneration and allowances rate as is the case if a coroner is specially vetted by a panel—although, I suppose that it could be argued that he receives an enhanced salary for having undergone that process. Otherwise, however, it should all be part of a day’s work.

David Heath: Amendment No. 180 is an attempt to ensure that where these special procedures apply, an inquest is held in the place in which it would normally have been held. That is to say that, if it were a matter coming before the coroner in London, the inquest would be held in London. If it would normally have been held in Somerset, it would be held in Somerset. That is important for the victim’s family and other witnesses.
It would not be appropriate simply because of the circumstances of the case for the inquest to be whisked away to Paddington Green or somewhere in order to be held even more remotely from the normal arrangements. I hope that the Minister can give me an assurance as to how guidance will be issued to the various authorities that determine where an inquest is held, and that the normal circumstances and arrangements for an inquest will be as I suggested.

Douglas Hogg: I will comment on two matters which fall within this group of amendments. First, on the regulations, I agree with my hon. and learned Friend the Member for Beaconsfield that it is highly desirable that the regulations should be subject to the affirmative resolution procedure and not to any other.
Secondly, remuneration. It is very important that we should keep in mind public confidence, and it would be very undesirable in those terms if the specially-appointed coroner were paid a remuneration out of kilter with that paid to ordinary coroners, especially if the specially-appointed coroner were paid a great deal more. I can see the public—Mr. al-Fayed, for example—complaining like anything and suggesting that the specially-appointed coroner was being bribed, or something of the kind. What is required is something like that which is provided for in my amendment No. 233, which has not been selected, namely that the level of remuneration should be agreed prior to the appointment by the Lord Chief Justice. If that were the case, I think it would be extremely difficult to make the criticism that might otherwise be made, but I do think that we have to address the question of remuneration and put in place some mechanism to prevent anybody crying foul.

Elfyn Llwyd: I agree with what has just been said, and with what the hon. Member for Somerton and Frome said about inquests taking place where they would have done under an ordinary coroner, if I might put it that way. It goes to public confidence, and I think it is very important that we have a geographical spread of these coroners throughout England and Wales. That is key.
In Wales, we must also consider the ability to speak the Welsh language. As a Welsh first-language speaker, I have practised many times in coroners’ courts and conducted proceedings in Welsh without the need for translation. We must look at both the geographical spread and the linguistic differences. In Wales, there will occasionally be a need for a Welsh-speaking coroner. I agree with the purport of the amendments and hope the Minister will give some reassurance in due course.

Tony McNulty: On amendment No. 180, it is not our intention that the inquest should be anywhere other than the appropriate location. Given that I have said that these will be cases that are few and far between and very small, even with a cadre of six to eight specially appointed coroners it should not be beyond wit or practicability to ensure that that prevails. I hope that gives the hon. Member for Somerton and Frome the reassurance he seeks.
On the wider points made by the hon. and learned Member for Beaconsfield, much of what he has discussed relates to what we were talking about before in terms of whether the Secretary of State, the Lord Chief Justice or whomever should be party to the appointments. I would prefer that we take that away and look at it in the same spirit as I have suggested, save for a couple of points. As I understand it, members of my office are developed vetted over the course of six months. They have to be, because of my responsibilities. It is quite a tortuous process—I am not sure whether their friends talk to them again—and it does not involve any increase in their remuneration. They then go back and get on with their job.
The point about remuneration is included because of cases such as Diana. That is not an appropriate example, because the coroner was judge-appointed, but in such cases there is an extraordinary level of travel and other costs additional to the regular remuneration. It is not about paying some inflated fee to special coroners because they are lapdogs and lickspittles of the Government, which of course they will not be.
The broad spirit of the amendments, including amendment No. 178, which we have discussed, is about who should make the appointment and whether it should be an Executive role. I am happy to consider the matter and return to it on Report. In that context, I ask that the amendment be withdrawn.

Dominic Grieve: As these are probing amendments, I am happy not to press them. I am grateful to the Minister for saying that he will reconsider. On an optimistic note, I hope that he will have seen from the debate that we have the foundations for agreement on the issue. That might well require the Government to redraft the clauses in question radically to get them in a form that would command general acceptance. I hope that he will take that on board. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 10, Noes 6.

Question accordingly agreed to.

Clause 65 ordered to stand part of the Bill.

Clause 66 ordered to stand part of the Bill.

Clause 67

Inquests: intercept evidence

Tony McNulty: I beg to move amendment No. 177, in clause 67, page 48, line 22, after ‘1988’ insert
‘or section 18A of the Coroners Act (Northern Ireland) 1959’.

Edward O'Hara: With this it will be convenient to discuss Government new clause 6—Certificate requiring inquest to be held without a jury: Northern Ireland.

Tony McNulty: Briefly, the amendment will ensure that the amendments to the Regulation of Investigatory Powers Act 2000 contained in clause 67, which make intercept material admissible at inquest proceedings, also extend to Northern Ireland. New clause 6 will insert a new section in the Coroners Act (Northern Ireland) 1959, making provisions equivalent to clause 64, which we have discussed, for Northern Ireland. It will enable the Secretary of State to certify that an inquest will involve
“the consideration of material that should not be made public”.
When a certificate has effect, an inquest must be held or continued without a jury. Effectively, the new clause means that clause 64, as agreed to by the Committee, should also apply to Northern Ireland. These are entirely technical, nay territorial, changes, and I commend them to the Committee.

Amendment agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

Dominic Grieve: As a matter of consistency, I will be voting against clause 67, as it follows from the other clauses that we voted against, whereas the previous clause on inquiries was quite different.

Question put, That the clause, as amended, stand part of the Bill.

The Committee divided: Ayes 10, Noes 6.

Question accordingly agreed to.

Clause 67, as amended, ordered to stand part of the Bill.
Further consideration adjourned.—[Mr. Campbell.]

Adjourned accordingly at six minutes to Seven o’clock till Thursday 15 May at Nine o’clock.